Affirmed and Opinion Filed July 2 , 2019 .

In The 

## Court of Appeals Fifth District of Texas at Dallas

No. 05
- 18
- 00676
- CV RUTH TORRES , Appellant

V. PURSUIT OF EXCELLENCE, INC. , Appellee On Appeal from the 44th Judicial District Court

Dallas County, Texas Trial Court Cause No. DC
- 16
- 08711 

### MEMORANDUM OPINION Before Justices Myers, Osborne, and Nowell Opinion by Justice Myers Appellant Ruth Torres files this interlocutory appeal of the trial court’s denial of her motion
to dismiss under the Texas Citizens Participation Act (TCPA). See T EX
. C IV
. P RAC
. & R EM
. C ODE A NN
. §§ 27.008 , 51.014(a)(12)

. Torres brings six issues on appeal , four concern ing the motion’s untimeliness, one addressing its merits, and one questioning whether an automatic stay was in plac e at the time the motion was denied . We affirm the trial court’s denial of Torres’ s motion to dismiss

. BACKGROUND The underlying dispute in this case concerns a contract in which Torres was to provide human r esources consulting services to appellee, Pursuit of Excelle nce (POE) . Due to the nature of the agreement, Torres received access to a broad range of POE’s confidential and proprietary– 2

–

information. Appellee alleged Torres prematurely terminated her contract with the company and transmitted POE’s confidential and proprietary information to her personal electronic storage device. On July 20, 2016 , POE filed suit against Torres for breach of contract, breach of fiduciary duty , misappropriation of trade secrets, unjust enrichment, tortious interference with contract and business relationships, and commercial disparagement

. Torres filed an answer , denying a llegations and asserting claims against POE and other parties

. On Februar y 7, 2018 POE filed its first amended petition, containing no new causes of action. POE filed a second amended petition adding violations of the Texas Finance Code and the Texas Harmful Access by Computer Act on March 14, 2018. On May 15, 2018 Torres filed a motion to dismiss POE’s claims against her pursuant to the TCPA. POE filed a response, objecting that the motion was untimely because it was filed over two years after the inception of all claims except two, and sixty

- two days after those claims, and al so objecting that Torres failed to meet her burden of proof under the TCPA. Torres r esponded, seeking leave to file her motion on the basis that she was “pro se and was unaware of this statute.” The trial court held a hearing on Torres’ s motion to dismiss , and the court denied that motion on June 6, 2018. The next day, Torres filed a notice of appeal challenging the order denying her motion to dismiss, among other orders

. 1 TEXAS CITIZENS PARTI CIPATION ACT We review a trial court’s denial of a TCPA motion to dismiss de novo. Dyer v. Medoc Health Servs. , LLC , No. 05

- 18

- 00472

- CV, 2019 WL 1090733, at *3 (Tex. App.

— Dallas Mar. 8, 2019 , pet filed ). A party triggers the TCPA's dismissal procedure by filing a motion to

1 We ordered Torres to file a brief in this case limited to the trial court’s denial of Torres’ s motion to dismiss under the TCPA. We determined that we lack jurisdiction over numerous other orders listed in Torres’ s notice of appeal, and that review of the trial court’s order on DFW A irport’s jurisdictional plea would proceed under a separate case number.– 3

–

dismiss. See T EX
. C IV
. P RAC
. & R EM
. C ODE A NN
. § 27.003(a). A motion to dismiss must be filed not later than the 60th day after the date of service of the legal action. Id. § 27.003(b). If the motion is not filed within the statutory deadline, the movant forfeits the early

- dismissal protections of th e
statute. See, e.g. , Braun v. Gordon , No. 05

- 17

- 00176, 2017 WL 4250235, at *1, 3 (Tex. App.

— Dallas Sept. 26, 2017, no pet.) (mem. op.). But, the trial court may extend the time to file a motion on a showing of good cause. T EX
. C IV
. P RAC
. & R EM
. C ODE A NN § 27.003(b).
ANALYSIS
I. Torres’ s Motion Was Untimely Torres’ s first four issues conc ern the timeliness of her TCPA motion to d ismiss. First,
Torres asks whether the petitions and pleadings of the parties are sufficient to support dismissal under the TCPA wit hout To rres explicitly invoking the A ct. Both parties agree that Torres did not mention the TCPA in anything she filed prior to May 15

. Relief under the TCPA requires the filing of a motion to dismiss under the A ct

. See T EX
. C IV
. P RAC
. & R EM
. C ODE § 27.003 (a), (b)

. Until Torres filed h er motion to dismiss under the A ct, t he trial court had no m otion before it on which it was empowered to rule in accordance with the TCPA . The A ct empowers the court to rule on a motion pending before it; it does not empower t he court to apply the TCPA sua sponte. T EX
. C IV
. P RAC
. & R EM
. C ODE § 27.005

. The trial court could not have granted this relief without a pending motion. See T EX
. C IV
. P RAC
. & R EM
. C ODE § 27.00 3 (c). We decide against Torres on this issue. In her second i ssue, Torres asks whether her TCPA Motion to Dismiss was “considered filed timely if one day late due to technical difficulty per [ T EX
. R. C IV
. P. 21(f)(6) ] .” Torres filed her motion to dismiss on May 15, 2018 . The parties do not dispute that this was more than sixty days after she was served w ith the second amended petition

. See T EX
. C IV
. P RAC
. & R EM
. C ODE A NN § 27.003(b). In defense of her late filing, Torres argues to this C ourt that she was unable to file timely due to a “technical diffi culty” in the e

- filing system. In the trial court, h owever, she– 4

–

justifie d her untimeliness with different explanation s , arguing first that “the record did not show service of the citation” for POE’s amended February 7, 2018 pleading; second, that the record did not show “service of the citation fo r POE’s March 14, 2018 pleading ” ; and third, that she “is pro se and unaware [of the TCPA].” Under Texas law, POE’s certificates of service for both pleadings create a presumption of service because they constitute prima facie evidence of service. Mathis v. Lockwood , 166 S.W.3d 743, 745 (Tex. 2005). The record shows that Torres was served with both of POE’s amended pleadings. Torres did not argue or attempt to rebut such a presumption. Also, she provided no evidence at trial to support her claim of technical difficulty. Because she provided no evidence of her alleged technical difficulty in the trial court, there is no evidence for us to review here. Torres did n ot meet the statutory dead line. We overrule Torres’ s second issue. In Torres’ s third issue, she asks whether POE’s First Amended Original Petition “restart[s] the count for purposes of the TCPA.” At the time Torres filed her TCPA Motion to Dismiss, POE had filed a Se cond Amended Original Petition, which the trial court review ed under the TCPA

. The record shows Torres was served with the Second Amended Original Petition on March 14,
2018. Torres filed her motion to dismiss under the TCPA on May 15, 2018, which is more than sixty days later . We need not address whether the clock was “restarted” by the February 7 filing and service , because even if it was, Torres’ s TCPA motion to dismiss would have been filed more than sixty days after she was served with the Second Amended original petition , making her motion untimely. See T EX
. C IV
. P RAC
. & R EM
. C ODE A NN
. § 27.003(b). Torres’s fourth issue contending her TCPA motion w as timely is that it was filed within sixty days after service of other motions by POE, making it tim ely as to those motions. However, Torres moved only to dismiss POE’s pleaded causes of action in her motion; she did not move to dismiss any legal acti ons by POE filed within the sixty

- day period . Because she did not move to– 5

–

dismiss any of POE’s interim mo tions, we need not determine whether any of POE’s interim motions constitute “legal actions” within the TCPA’s statutory definition of that term. See T EX
. C IV
. P RAC
. & R EM
. C OD E §27.001(6). We overrule Torres’ s fourth issue.
II. Torres’ s Untimely Motion Makes It Unnecessary to Address the Merits of Her Remaining Arguments Torres raises two additional issues before this C ourt. In her fifth issue, she asks this Court to address the motion on its merits. In light of our conclusion that the motion was untimely, we need not examine its merits. See Braun v. Gordon , No. 05

- 17

- 00176, 2017 WL 4250235, at *1, 3 (Tex. App.

— Dallas Sept. 26, 2017, no pet.) (mem. op.). In her sixth issue, Torres asks whether there was an automatic stay under section 51.014(b) at the time t he motion to dismiss was denied

. Because the motion was untimely, we need not examine the possible existence of a stay. See i d

. (concluding that the movant's failure to have the case set for a timely hearing results in the movant forfeiting the TCPA's prot ections, and the case should continue as if the motion to dismiss was never filed).
CONCLUSION We affirm the trial court’s denial of the motion to dismiss

.

180676F.P05 /Lana Myers/ LANA MYERS JUSTICE– 6

– 

## Court of Appeals Fifth District of Texas at Dallas

JUDGMENT
RUTH TORRES, Appellant No. 05

- 18

- 00676

- CV V. PURSUIT OF EXCELLENCE, INC., Appellee On Appeal from the 44th Judicial District Court, Dallas County, Texas Trial Court Cause No. DC

- 16

- 08711. Opinion delivered by Justice Myers. Justices Osborne and Nowell participating.
In accordance with this Court’s opinion of this date, the judgment of the trial court is AFFIRMED

. Judgment entered this 2nd day of July, 2019.